Opinion
F072144
05-01-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMON VELASQUEZ SALAS, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SC059946A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
Ramon Velasquez Salas was sentenced to two three strike terms of 25 years to life after he was convicted of committing two felonies in 1994. The sentence on one felony was stayed pursuant to Penal Code section 654. In 2014, Salas filed a petition pursuant to the provisions of Proposition 36, the Three Strikes Reform Act. The trial court denied the petition concluding Salas was not eligible for resentencing.
All statutory references are to the Penal Code. --------
The issue presented is whether the trial court's eligibility determination is supported by substantial evidence. For the reasons explained below, we conclude it is not and remand the matter to the trial court for further proceedings.
FACTUAL AND PROCEDURAL SUMMARY
In 1994, a jury found Salas guilty of assault with a deadly weapon (a knife) (§ 245, subd. (a)), and spousal abuse (infliction of corporal injury resulting in a traumatic condition upon a cohabitant - § 273.5, subd. (a)). He was found not guilty of a second assault with a deadly weapon count (an automobile) (§ 245, subd. (a)), but guilty of the lesser included offense of misdemeanor battery (§ 243, subd. (a)). The jury also found true the allegation that Salas had suffered two prior convictions which constituted strikes within the meaning of section 667, subdivisions (b)-(i), and had served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Salas to terms of 25 years to life for both of the felony convictions, plus two years for the two prior prison terms, staying the sentence on the assault count pursuant to the provisions of section 654.
The following facts underlying these convictions are taken from the opinion from this court affirming the convictions. (People v. Salas (Jan. 7, 1997, F023185) [nonpub. opn.].) Salas and the victim, E., lived together in 1994. In May 1994, E. had observed Salas with another woman, causing the relationship to become strained. On September 13, 1994, E. noticed Salas following her as she drove home from work. A short while after arriving home, Salas accused E. of having an affair with several men. Salas dismissed E.'s protestations of innocence, and demanded she apologize. E. refused since she continued to deny having an affair. Salas hit her in the face and eye three times.
Salas next told E. he wanted her to accompany him on a drive. She agreed to meet Salas outside, hoping to escape in her own car. When she was outside, Salas forced her into his car. E. pleaded with Salas to take her home. Salas increased the speed of the car when she tried to get out. Salas ordered her to stay in the car when he went to visit friends. Eventually, Salas drove towards a small city to visit another friend, who he discovered was not at home. Salas then struck E. in the face and ordered her out of the car. Salas threw her into a cotton field, pinned her on the ground, and repeatedly hit her and tried to choke her. E. pleaded with Salas to stop, and asked him why he was beating her. Salas told her she knew why he was beating her. E. again denied having an affair, and asked with whom she was allegedly sleeping. Salas said the names of several people unknown to E..
Salas then ordered E. back into the car, and demanded to know the names of her alleged boyfriends. E. refused to apologize and refused to get into the car. Salas drove the car towards her, pinning her legs against a chain link fence. E. ran towards some nearby farm equipment for safety. Salas exited the car and dragged her back into the car.
E. attempted to placate Salas by engaging in "sweet talk," and asked him to take her home so she could go to work the following morning. Salas agreed, but ordered her to keep her head down so the police would not stop the car.
Upon arriving home, E. went into the bedroom. Salas continued the argument and ripped the phone out of the wall. When E. refused to go to bed with him, Salas "produced a knife and slashed [E.] across the chest." E. cleaned the wound herself, and then fell asleep.
Salas drove E. to work the next day. E. reported the incident to her co-workers and the police. She showed her co-workers the bruises caused by Salas.
On October 8, 2014, Salas filed a petition for resentencing on the spousal abuse charge pursuant to the provisions of Proposition 36, The Three Strikes Reform Act of 2012. By agreement of the parties, the matter was continued several times to permit the Supreme Court to issue its opinion in People v. Johnson (2015) 61 Cal.4th 674, which would resolve an issue in the case. As pertinent here, the Supreme Court held in Johnson that a defendant could be resentenced on a count which was eligible for resentencing under the statute even if he or she was also serving a three strike sentence on a count which was not eligible for resentencing. While Salas was eligible for resentencing on the spousal abuse charge, he was not eligible for resentencing on the assault with a deadly weapon count.
After Johnson was decided, the prosecutor argued that while Salas was not barred from resentencing by his assault with a deadly weapon conviction, he was ineligible for resentencing on the spousal abuse charge because he was armed with a knife during the crime. After receiving briefing from both parties, the trial court agreed with the prosecutor and denied the petition, finding Salas was ineligible for resentencing.
DISCUSSION
As relevant here, Proposition 36, as codified in section 1170.126, permits a defendant to file a petition for resentencing if he or she was sentenced to an indeterminate life term pursuant to the Three Strikes Law, and meets the eligibility requirements listed in the section. A defendant is not eligible for resentencing if the felony conviction is either a violent felony as defined in section 667.5, subdivision (c), or a serious felony as defined in section 1192.7, subdivision (c), or if the crime was committed under the circumstances listed in section 667, subdivisions (e)(2)(C)(i)-(iii). (§ 1170.126, subds. (e)(1) and (e)(2)).
The specific issue in this case is whether Salas is ineligible for resentencing because the spousal abuse charge falls within the provisions of section 667, subdivision (e)(2)(C)(iii). Under this provision, a defendant is ineligible for resentencing if "During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (Italics added.) The trial court found Salas was armed with a knife when he committed the acts leading to the spousal abuse conviction. Since the only time the knife was mentioned during the testimony was when Salas slashed E. at the house, the trial court concluded both convictions resulted from this act.
The trial court noted that at the original sentencing hearing it stayed the sentence on one of the felonies pursuant to the provisions of section 654. Therefore, the trial court reasoned it must have concluded at that time that Salas was convicted of the spousal abuse charge for his action of slashing E. with a knife.
Appellate courts have disagreed on the standard of proof required in the trial court to prove a defendant is ineligible for resentencing. In People v. Osuna (2014) 225 Cal.App.4th 1020, 1040, this court cited People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305, for the proposition that the appropriate standard of proof was proof by a preponderance of the evidence. In People v. Arevalo (2016) 244 Cal.App.4th 836, 852-853 (Arevalo), the Second District concluded ineligibility must be proven by proof beyond a reasonable doubt. We need not address this disagreement because there is insufficient evidence to support the trial court's conclusion regardless of the standard of proof the trial court was required to apply. (People v. Robinson (2010) 47 Cal.4th 1104, 1126 [only uphold factual finding if supported by substantial evidence]; People v. Cluff (2001) 87 Cal.App.4th 991, 998 [trial court abuses its discretion when factual findings critical to decision are not supported by the record].)
Our review of the sufficiency of the evidence is deferential. We " 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203, disapproved on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1189-1190.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
It is settled that when determining whether a defendant is eligible for resentencing, the trial court must look to the record of conviction. (Arevalo, supra, 244 Cal.App.4th at p. 848; People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 (Burnes); People v. Blakely (2014) 225 Cal.App.4th 1042, 1063.) A probation report is ordinarily not part of the record of conviction. (Burnes, supra, 242 Cal.App.4th at p. 1458.) An appellate opinion, on the other hand, is part of the record on appeal. (People v. Brimmer (2014) 230 Cal.App.4th 782, 800.)
We have thoroughly summarized the appellate opinion above. The trial court relied primarily on this opinion, noting it had not obtained its notes from the trial from storage. It also reviewed various documents it found pertinent from what appears to be the court file.
The appellate opinion described an assault that occurred at the home, an assault that occurred in the car, an assault that occurred in the cotton field, and the assault with the knife that occurred after the return to the home. It is unclear on which of these assaults the spousal abuse charge was based. The verdicts from the trial do not clarify the issue. The verdict on the first count found Salas guilty of assault "with a Deadly Weapon, to wit: a knife," and the second count found Salas guilty of "Inflict Corporal Injury Upon [E.], a Person of the Opposite Sex With Whom the Defendant was Cohabiting." There is no reference in the verdict on the second count to the use of a knife. The record also contains the complaint filed against Salas. The spousal abuse charge is found in count three, and makes no reference to the use of a knife.
It is impossible to tell from the record before the trial court whether the spousal abuse charge was based on the assault with the knife, or on one of the other assaults committed by Salas during his reign of terror. Nor do we find the trial court's reliance on the sentence it imposed to be persuasive. The trial court noted that it stayed the sentence on the assault with a deadly weapon count pursuant to section 654, and imposed sentence on the assault count. The trial court reasoned that the entire evening was one continuous transaction and that a knife was used during the transaction.
While the trial court's reasoning may explain why it stayed the sentence on the assault count, it does not establish on which set of acts the jury relied when convicting Salas of spousal abuse. Because the record before the trial court does not contain evidence that would establish on which act the jury based its spousal abuse verdict, we conclude there is not substantial evidence to support the trial court's conclusion that Salas is ineligible for resentencing.
DISPOSITION
The order denying the petition because Salas was not eligible for resentencing is reversed. On remand, the trial court must exercise its discretion in determining if resentencing Salas would pose an unreasonable risk to public safety, a determination that is made by applying the preponderance of the evidence standard of proof. (§ 1170.126, subd. (f); Arevalo, supra, 244 Cal.App.4th at p. 854.) Salas must be resentenced only if the trial court determines he is eligible for resentencing, and he does not pose an unreasonable risk to public safety.
If the trial court concludes that Salas should be resentenced, the trial court may choose either felony conviction as the principal term pursuant to the provisions of section 1170.1, and consider the interpretation of section 654 as it existed when Salas committed the crimes. (People v. Norrell (1996) 13 Cal.4th 1, 5-6.)